The Irish Backstop Plan: Alternative Routes or Clearer Guarantees?

The political chaos currently prevailing in Westminster has increasingly exposed the risk of a hard Brexit, namely a withdrawal of the UK from the EU in March 2019 without any deal. As the EU heads of State and government gather today in Brussels for a European Council summit to discuss the Brexit negotiations, the DCU Brexit Institute hosts an event on the backstop and the island of Ireland. The event will be the occasion to focus on the Irish backstop solution which is at the heart of the backlash from the UK Members of Parliament against the withdrawal agreement.

Since the signature of this agreement by the EU-27 and the UK Government, the EU has repeatedly stated, in unison with Theresa May’s declarations, that the deal is the best possible and only possible deal. Particularly, the Irish backstop solution will guarantee an invisible border between the North and the South of Ireland and protect the Good Friday Agreement in all its dimensions; it is the fruit of important concessions made by both the EU and the UK. Yet, after a leadership challenge yesterday by back-benchers acting according to the rules on the 1922 Committee, and a potential premiership challenge by the Opposition, is there any alternative route to the Irish backstop plan? While the leader of the Opposition party, Jeremy Corbyn, is pushing for general elections and has proposed his own plan, Priti Patel has recently advocated for a “World Trade Deal” and the possibility for the UK to trade under World Trade Organization (WTO) terms.

This blog will use the plan proposed by the leader of the Labour Party and Prety Patel recent advocacy of a deal governed by WTO law to underline that the Irish backstop solution may indeed constitute, at the moment, the best possible and only possible solution. To save the withdrawal agreement and ensure an orderly UK exit, the EU-27 may have to address the deepest fears and concerns of some UK Members of Parliament (MPs), namely the possible permanent character of the backstop. For such purpose, the EU-27 may have to offer additional guarantees to the UK.

Alternative Routes?

Yesterday, Theresa May survived a leadership challenge within the Tory Party. Such a win may not prevent the Opposition from tabling a premiership challenge within Westminster. This vote could lead to a general election as wished for by Jeremy Corbyn. The leader of the Labour Party is currently fighting against what he names “the worst-of-all-worlds deal,” putting forward his own alternative plan. According to Jeremy Corbyn, the UK should conclude with the EU a new, comprehensive customs union, with a British say in future trade deals. Moreover, the UK should maintain under a new arrangement a strong relationship with the EU Single Market, giving the UK frictionless trade with the EU, as well as the freedom to rebuild its economy.

Two major flaws remain in Jeremy Corbyn’s proposal which are unlikely to win the favour of the EU. In the first place, the proposition advanced by the Labour Party’s leader does not correspond to an alternative solution to the Irish backstop. It does not constitute a transitional arrangement as required by Article 50 TEU that would temporarily enter into force at the end of the transition period in the absence of an EU-UK partnership agreement and pending the conclusion of such agreement. Instead, Jeremy Corbyn lays the grounds of a permanent future trade relationship with the EU, thereby failing to respond to the EU’s constant demand since December 2017 for a solution to avoid a hard border within the island of Ireland if the transition period expires before the two parties reach a deal. Furthermore, the Labour leader’s alternative plan rejects any application of the EU State aid rules. According to Jeremy Corbyn, the UK should be able to rebuild its economy, nationalise undertakings and grant State aid to UK companies. This element is unlikely to satisfy the EU-27. The EU may be tempted despite the EU-UK customs union to impose countervailing duties against the UK, thereby jeopardising the absence of customs checks at EU-UK borders.

In an article published on the Financial Times on 1stDecember 2018, Priti Patel wrote: “Britain needs to be ready to walk away and prepare for a “World Trade Deal,” trading under World Trade Organisation terms.” As I had the occasion to previously explain throughout a blog post and a working paper, in the event of a hard Brexit, the application of the WTO Most-Favoured Nation (MFN) obligation will entail a hard border between Ireland and Northern Ireland. Customs controls and regulatory checks on goods will take place at the EU-UK borders, namely at ports, airports and at the Irish border, the only land border between the bloc and the UK. Unless the UK waives tariffs, customs controls and regulatory checks at its borders with all its non-preferential trade partners and hence, with the 163 WTO Members, it will not be able to guarantee an invisible border in Ireland without breaching the MFN clause.

So far, alternative routes to the Irish backstop plan have proved scarce. Most importantly, they do not seem to ensure an invisible border on the island of Ireland. The legal effect of the Irish backstop solution, however, poses deep concerns among MPs who fear that the UK will ultimately be locked in a permanent customs union with the EU.

The Legal Effect of the Irish Backstop Solution

Since the publication of the draft withdrawal agreement on 14 November 2018 and its endorsement by the heads of State and government during the last summit of the European Council on 25 November 2018, UK Members of Parliament from all political persuasions have been unsparing in their criticisms of the concessions Theresa May made to reach a deal with the EU. Although the draft withdrawal agreement survived the first 48 hours last November during which the Prime Minister secured cabinet approval, it also prompted the resignation of two top Cabinet Ministers, including the Brexit Secretary, Dominic Raab, the following day. Since then, MPs have used a flurry of adjectives and superlatives to disqualify the withdrawal agreement. At the heart of the mounting tension, as well as strong protest and resistance across the House of Commons has been the Irish backstop plan encompassed in the Protocol on Ireland/Northern Ireland (the ‘Protocol’) of the withdrawal agreement. The opposition to the deal from each corner of the House reached its climax last week after the Attorney General, Geoffrey Cox, answered questions from MPs on 3 December 2018. The address led the House of Commons the day after to hold the government in contempt for not complying with a previous MPs’ request to publish the full legal advice of the Attorney General to Cabinet on the withdrawal agreement and the Protocol on Ireland/Northern Ireland. On 5 December, the UK Government made this legal note available to the public.

Dated 13 November 2018, the Attorney General’s opinion was issued the exact same day Theresa May gathered her cabinet to seek its approval of the draft withdrawal agreement. Interestingly, the 6-page document deals only with the legal effect of the Protocol. Less interestingly perhaps for those MPs who voted in favour of the contempt finding, the legal advice does not contain any revelation or surprise hidden behind the lines of the Protocol. Geoffrey Cox expressed clearly both in his address to the House and in his legal note to the cabinet of Theresa May: the Irish backstop solution enshrined in the Protocol would subsist indefinitely, should it enter into force, until a superseding agreement took its place, in whole or in part. The UK would not be able to exit the single EU-UK customs territory without a subsequent agreement which should be jointly deemed by the EU and the UK as fulfilling the objectives of the Protocol. When in force, the Protocol will endure “even if parties are still negotiating many years later, and even if the parties believe that talks have clearly broken down and there is no prospect of a future relationship agreement.”

Although formulated in crystal-clear words, the statements of the Attorney General do not importantly differ from the declarations of both the EU and the UK Government, as well as from the text of the Protocol. In December 2017, the EU and the UK Government committed to find and include within the withdrawal agreement a solution (the so-called backstop solution) in order to avoid a hard border within the island of Ireland following the UK exit from the EU. Since then, the EU-27 have constantly argued that the backstop solution represents a safety net to address the unique circumstances on the island of Ireland that would enter into force unless and untilthe EU and the UK reach a partnership agreement which guarantees an invisible border between the South and the North of Ireland, as well as protects the 1998 Good Friday Agreement in all its dimensions. The Protocol also expressly provides that the customs union enshrined in Article 6(1) will enter into force for an indefinite period. It can only cease to apply following a joint EU-UK decision that the Protocol is no longer necessary to achieve its objectives (Article 20, subparagraph 3 of the Protocol).

The statements of Geoffrey Cox nonetheless offer some useful insights:

First, the legal advice confirms that the UK Government proposed an exit provision in the event of a breakdown of the negotiations which was ultimately rejected by the EU. Until now, we knew only that the UK Government had considered suggesting such an amendment;

Second, Article 50 TEU on which the backstop solution rests is not intended to fix permanent arrangements between the EU and the UK. An enduring customs union may therefore violate Article 50. According to the EU, the EU-UK single customs territory constitutes only “a temporary “bridge to the future”, which will be superseded by a final agreement.” Should the ‘bridge’ become a permanent arrangement, the backstop solution may be deemed as inconsistent with EU law. In the future, a UK Government could challenge the uncomfortable legal basis on which the backstop plan lies.

Third, the specific regime applicable to Northern Ireland may prove problematic. Indeed, the EU may be unwilling to grant to one part of a country that exited the EU Single Market full access to the EU market for goods, and the EU Customs Union. On this ground, the EU will likely wish “a clear and early end” to the backstop.

Fourth, the application of the backstop solution may require significantly complex legal and administrative arrangements, as well as important human, financial and technical resources. As the UK financial contributions to the EU will cease after the transition period, the EU may be particularly reluctant to continue applying for a long-term period the Irish backstop plan.

Hence, these considerations included in Geoffrey Cox’s legal note and reflecting some of the EU concerns over the backstop suggest that such solution is clearly not intended to become a permanent one. Yet, those elements did not convince Westminster; some MPs would like additional EU guarantees.

Clarifying the Legal Effect of the Protocol on Ireland/Northern Ireland?

Expecting a crushing defeat, Theresa May postponed at the last minute on Monday afternoon the vote in Westminster on the withdrawal agreement. The UK Premier then embarked upon a European tour on Tuesday passing by The Hague, Berlin and Brussels to address concerns to EU partners. She was most importantly searching for clarifications on the status of the Protocol, and possibly legally binding re-assurances from the EU regarding the temporary character of the backstop. During her visits to the EU heads of States and diplomats, the Premier Minister received the same answer: there is no room for renegotiation of the withdrawal agreement.

Yet, witnessing the current chaos in Westminster, EU partners are willing to help. They fear a disorderly UK exit from the EU on 29 March 2019 which would cause enormous disruptions for both sides. Customs and regulatory checks would be reinstalled, entailing considerable queues of lorries at the borders and worryingly threatening the Peace Process between Northern Ireland and the Republic of Ireland. In his invitation letter to the 27 leaders of the EU Member States for today’s European Council summit, the President of the European Council, Donald Tusk, specified that discussions will inter alia revolve around the state of preparations for a no-deal scenario as the time left is now running out. Yet, after meeting with Theresa May on Tuesday 11 December, the same Donald Tusk had declared that the EU-27 clearly want to help; he nonetheless added, “[t]he question is how”.

How could the EU bloc assist the new UK Government and permit the approval by Westminster of the withdrawal agreement? The answer to this question may lie with what Theresa May’s quest for legally binding re-assurances from the EU bloc on the Irish backstop solution. As mentioned above, the Irish Prime Minister discussed yesterday with the President of the European Commission, Jean-Claude Juncker, what assurances could be given on the application of the backstop. Along the same lines, Jean-Claude Juncker had stated on Tuesday in front of the European Parliament: “[…] if used intelligently – there is room enough to give further clarifications and further interpretations without opening the withdrawal agreement.” Hence, at today’s summit, the EU heads of State and government could offer promises that the Irish backstop solution, once and if in force, would constitute a temporary solution only. Relying on the elements expounded by the Attorney General in his legal advice, the EU-27 could, first, underscore the fact that it is not in the best interests of the EU and its Member States to see the backstop solution becoming de facto permanent and, second, legally commit to a temporary solution.

Such instruments of international law clarifying and interpreting provisions of a legally-binding EU act are not unknown to the EU. The essence of those instruments is to offer explanations on how the EU and its Member States understand and will apply provisions of the controversial EU act without contradicting the rights and obligations encompassed in this act. In 2009, the EU made use of such legally binding treaty interpretation to rescue the Treaty of Lisbon and permit its ratification by Ireland after a first referendum that had voted the Treaty down. More recently, in 2016, the EU issued a legal text providing guarantees to the Netherlands – without introducing additional rights or obligations – on the association agreement between the EU and Ukraine. The text followed a rejection by Dutch voters in a non-binding referendum of the EU-Ukraine agreement.

The EU-27 remain, however, reluctant to offer guarantees – even more, legally-binding guarantees on the Irish backstop. Legally-binding promises could facilitate and multiply future legal challenges by the UK. Moreover, it is not certain whether such guarantees correspond to simple clarifications or additional obligations. Furthermore, would additional EU re-assurances, even legally binding ones, suffice to calm down the anger and frustration in London?

Conclusion

Approval of the withdrawal agreement by Westminster based on solid re-assurances offered by the EU concerning the temporary status of the backstop solution may represent the most reasonable and only possible route to take for the UK. It would at least permit the UK to exit the EU in an orderly way and start negotiating a partnership agreement with the EU during the transition period. The withdrawal agreement is not an ideal deal, but it might constitute the best possible deal. Whether the backstop will enter into force and for how long, it is for the future to say. The UK will, nevertheless, have legal tools to challenge an Irish backstop solution becoming de facto permanent. First, Article 50 TEU is clearly not intended to fix permanent future obligations but transitional arrangements. Second, EU (legally-binding) guarantees according to which the backstop should not lock the UK into a permanent customs union with the EU may enable any future UK Government to trigger a legal action against the EU should the backstop show evident signs of a permanent character.